Huawei
Technologies Co Ltd v. Xiao Tianping
Claim Number: FA0112000102793
The Complainant is Huawei Technologies Co., Ltd., Shenzhen, CHINA (“Complainant”). The Respondent is Xiao Tianping, Shenzhen, CHINA (“Respondent”).
The domain name at issue is <huawei.biz>, registered with OnlineNIC dba ChinaChannel.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge, has no known conflict in serving as Panelist in this proceeding.
Sandra Franklin as Panelist.
Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel. As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).
Complainant submitted a Complaint to the Forum electronically on December 7, 2001; the Forum received a hard copy of the Complaint on December 11, 2001.
On December 20, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 9, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On January 31, 2002 pursuant to STOP Rule 6(b), the Forum appointed Sandra Franklin as the single Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the STOP Rules. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
Transfer of the domain name from Respondent to Complainant.
A. Complainant
Complainant has rights to its HUAWEI trademark.
Respondent does not have rights or
legitimate interests in the <huawei.biz>
domain name.
Respondent registered <huawei.biz>
in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered the HUAWEI trademark in four different countries including China, the country where Respondent resides. Complainant registered the HUAWEI trademark in relation to its telecommunication services, mobile phone services, wireless terminal, data communications apparatus, optical telecommunication apparatus, and computer programs.
As Complainant is the largest telecommunications equipment manufacturer in China, its trademark has produced substantial goodwill in Guangdong Province and throughout China.
Respondent registered the <huawei.biz> domain name on November 19, 2001.
Paragraph
15(a) of the STOP Rules instructs this Panel to “decide a complaint on the
basis of the statements and documents submitted in accordance with the Policy,
these Rules and any rules and principles of law that it deems applicable.”
In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.
Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:
(1) the domain name is identical to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of
the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.
Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form. Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights. The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.
Complainant has established rights
in the HUAWEI mark through its use of the mark in relation to its business of
manufacturing telecommunications equipment as well as its registrations of the
mark in several countries. The <huawei.biz> domain is identical to Complainant’s HUAWEI
registered trademark.
The Panel finds that STOP ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
The Panel is allowed to determine Respondent does not have rights or legitimate interests in the disputed domain name because Respondent has failed to provide a Response to this claim. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Respondent failed to furnish any information that would indicate it has a service or trade mark in the HUAWEI name or the identical domain name. As a result, Respondent is presumed not to have any rights or legitimate interests pursuant to the STOP Policy ¶ 4(c)(i) with respect to the disputed domain name.
Due to the fame and substantial goodwill built up by Complainant’s mark, it can be inferred that Respondent registered an identical domain to capitalize on Complainant’s goodwill by diverting Complainant’s customers to Respondent’s website for commercial gain. This behavior is not considered a bona fide offering of goods pursuant to STOP Policy ¶ 4 (c)(ii). See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites); see also Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (inferring that Respondent registered the domain name <householdbank.com>, which incorporates Complainant’s HOUSEHOLD BANK mark, with hopes of attracting Complainant’s customers and thus finding no rights or legitimate interests).
The Panel finds that STOP Policy ¶ 4(a)(ii) has been satisfied.
It is likely that due to Complainant’s popularity and the substantial good will associated with its mark, Respondent registered the identical domain name with the intention of commercially profiting from the sale of such a valuable domain name. This activity suggests Respondent’s bad faith pursuant to STOP Policy ¶ 4(b)(i). See Xerox Corp. v. Imaging Solution, D2001-0313 (WIPO Apr. 25, 2001) (finding that the Respondent registered the domain name in the hope and expectation of being able to sell it to the Complainant for a sum of money in excess of its out-of-pocket expenses and/or in the hope of forcing the establishment of a business arrangement beneficial to the Respondent).
Additionally, Respondent has demonstrated bad faith by registering a domain name that is likely to be falsely associated with Complainant’s business by Internet users. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
The Panel finds that STOP ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the Start-Up Trademark Opposition Policy, the Panel concludes that relief shall be hereby granted.
Accordingly, it is
Ordered that the domain name <huawei.biz>
be transferred from Respondent
to Complainant and subsequent challenges under the STOP Policy against the
domain name shall not be permitted.
Sandra Franklin, Panelist
Dated: February 14, 2002
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